Velasquez v. USA
OPINION AND ORDER: Court DENIES Armando Velasquez's Motion to Vacate, Set Aside or Correct Sentence (2255). A certificate of appealability is DENIED. Signed by Chief Judge Philip P Simon on 10/11/2016. cc: Velasquez (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA,
ARMANDO JOSE VELASQUEZ,
OPINION AND ORDER
Armando Velasquez is one of 24 members of the murderous, drug-dealing
Imperial Gangsters street gang of East Chicago, Indiana who were prosecuted on
various charges in this case. On January 10, 2014, Velasquez pled guilty to three counts
– conspiracy to participate in racketeering activity, attempted murder in aid of
racketeering activity, and use of a firearm during and in relation to a crime of violence.
[DE 796, 798.] On July 24, 2014, I sentenced Velasquez to a total term of imprisonment
of 305 months. Here’s how I got there: Velasquez received a sentence of 185 months on
the racketeering conspiracy and 120 months on the attempted murder, to be served
concurrent with one another; he also received a sentence of 120 months on the firearm
charge to be served consecutive to the other two counts. [DE 1000, 1002.] No direct
appeal was taken. Now before me is Velasquez’s motion under 28 U.S.C. §2255 seeking
to vacate, set aside or correct his federal sentence. Relief under §2255(a) is available for
a defendant who can demonstrate “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.”
Velasquez filed his §2255 pro se, raising four grounds for relief. I take up each of
the arguments below.
Issue One: — Compliance with Plea Agreement
The first issue is whether Velasquez was sentenced in accordance with the terms
of the plea agreement and its sentencing stipulation. The plea agreement in this case
was a binding one under Fed.R.Civ.P. 11(c)(1)(C) meaning that once I accepted the plea
agreement, I was required to follow the terms the parties agreed to as binding on the
court. [DE 1821 at 6-7.] The provision of Velasquez’s plea agreement binding on the
court was his agreement that he would “not receive a sentence that includes a period of
incarceration in excess of three hundred and sixty (360) months.” [DE 796 at ¶7(h)(i).]
The government also agreed that it would recommend that I impose a sentence “equal
to the minimum of the applicable guideline range.” [Id. at ¶7(g)(ii).]
In his statement of Issue One, Velasquez correctly notes that at sentencing, the
prosecutor argued for the bottom of the guidelines range, which was 355 months (235
months on the first two counts concurrently plus the mandatory consecutive 120
months on the gun count). [DE 1821 at 6, 14.] The sentence I ultimately imposed was
actually less – an aggregate of 305 months. For that reason, I share the puzzlement
expressed by the government in its response to Issue One. [DE 1827 at 2.]1 In his reply
memorandum and incomplete supplemental memorandum, Velasquez fails to further
address or to clarify Issue One. I can discern no right to relief on Issue One.
Issue Two: — Credit for State Sentence
Velasquez complains in Issue Two that he was not given full credit under
§5K2.23 of the Sentencing Guidelines for the 76 months he had already served on two
Indiana convictions for voluntary manslaughter and for carrying a handgun without a
license, both of which were overt acts in the racketeering conspiracy charged in this
court.2 Section 5K2.23 provided that a downward departure “may be appropriate” if
the defendant had completed serving a term of imprisonment for which §5G1.3(b) of
the Guidelines would have provided an adjustment if the other sentence had been
undischarged at the time of Velasquez’s federal sentencing, and that “[a]ny such
departure should be fashioned to achieve a reasonable punishment for the instant
offense.” §5K2.23 U.S.S.G. (2013).
At sentencing I agreed with Velasquez that he should be given appropriate credit
under §5K2.23. But as I explained to Velasquez at the proceedings on both his plea of
It’s worth mentioning that the government’s response is equaling puzzling. First, the
government treats Issue One as an ineffective assistance of counsel claim, when Velasquez’s statement of
the issue contains no reference to any failings by his attorney. Second, the government does not invoke
Velasquez’s appeal waiver as a defense to his §2255 motion which means it has waived the waiver. See
United States v. Kieffer, 794 F.3d 850, 852 (7th Cir. 2015).
Again the government treats the ground for relief as asserting a claim for ineffective assistance
of counsel [DE 1827 at 2], although, once again, there is no reference at all to defense counsel in
Velasquez’s statement of his claim [DE 1821 at 4.]
guilty and his sentencing, the Sentencing Guidelines are merely advisory rather than
mandatory. [DE 1825 at 18-19; DE 1612 at 25.] In any event, the language of §5K2.23 –
“may be appropriate” and “fashioned to achieve a reasonable punishment” – is not
mandatory, and does not prescribe a particular arithmetical method of awarding
sentencing credit. Instead, the provision leaves much to the discretion of the sentencing
At the sentencing hearing, I explained my Guidelines computation and how I
applied credit for the 76 months Velasquez had already served on his related state
So the guidelines in this case, as I mentioned, are 235 months to 293
months. He has served 76 months of that time, essentially, which means
the guidelines under the way I’m viewing the analysis pursuant to 5K2.23,
the range actually is 159 to 217 for the counts not relating to the firearm.
When you add in the 120 months that is required as a mandatory
minimum, consecutive to the other counts, the total punishment range
would be 279 months to 337 months.
I’m gonna select a point in the middle of that range, which I think is
appropriate for all of the aggravating reasons that I’ve already alluded to
on the record; but I have given the defendant a substantial consideration
for the time he’s already served on that earlier state court conviction.
[DE 1612 at 31.] In other words, I applied §5K2.23 to give Velasquez credit for his state
imprisonment in the manner I deemed appropriate to achieve a reasonable sentence.
Velasquez does not demonstrate any error in my application of §5K2.23, and certainly
does not demonstrate any basis for relief on a motion to vacate under §2255.
Issue Three: — Computation of Offense Level
Beginning under Issue Two and continuing in Issue Three, Velasquez argues that
his “correct base level is 37, not 38 from grouping,” and with a criminal history category
of IV, his guideline range prior to departure should have been 210 to 262 months, rather
than 235 to 293. [DE 1821 at 7-8.] Velasquez challenges the PSR’s multiple count
adjustment and the resulting total offense level. This argument is the kind of breadand-butter Guidelines application issue that is not cognizable as a claim under §2255.
Ordinarily, in the post-Booker era in which the Sentencing Guidelines are not
mandatory, relief is not available under §2255 for errors in Guidelines calculations
unless the error is of constitutional dimension. Hawkins v. United States, 706 F.3d 820,
826, 828 (7th Cir. 2013) (Hawkins I), citing Welch v. United States, 604 F.3d 408, 412 and n.4
(7th Cir. 2010); Hawkins v. United States, 724 F.3d 915, 916 (7th Cir. 2013) (Hawkins II).
Velasquez’s argument “involves no claim of constitutional error,” but is “just a claim
that the sentencing judge miscalculated the advisory guidelines range and might have
given a lower sentence had he not miscalculated it.” Hawkins II, 724 at 916-17. This
kind of claim could’ve been made at sentencing (but wasn’t), or been raised on direct
appeal (unless waived), but can’t be brought under §2255. Hawkins I, 706 F.3d at 824.3
In any event, the PSR correctly computes the multiple count adjustment. Under
U.S.S.G. §2E1.1(a)(2) the offense level for racketeering is the offense level for the
underlying racketeering activity. There were three acts of racketeering in Velasquez’s
I could have disposed of Issue Two on this same basis, but chose to address the merits to explain
how I exercised my sentencing discretion in granting Velasquez credit for his related state sentence.
case – one involving voluntary manslaughter where the adjusted offense level was 29.
[DE 919 at ¶35.] The second act involved the unlawful possession of firearm which
yielded an offense level of 14. [Id. at ¶41.] And the third act involved an attempted
murder in aid of racketeering where the adjusted offense level was 37. [Id. at ¶47.] So
the adjusted offense level was a 37 (using the group with the highest offense level) and
then one point was added under the unit analysis in U.S.S.G. § 3D1.4 for a total adjusted
offense level of 38. [Id. at ¶53.] There was no error in the Guideline computation as
To the extent that Velasquez is arguing that by accepting the plea agreement I
bound myself to the government’s recommendation to sentence him at the bottom of
the Guidelines range [DE 1821 at 5], he misunderstands the scope of what was binding
on me. The parties’ stipulation that the sentence could not be more than 360 months
was the portion of the agreement that became binding on the court once I accepted the
agreement. [DE 796 at ¶7(h).] See Fed.R. Crim. P. 11(c)(1)(C). But, as the document itself
clearly states, the government’s agreement to recommend a sentence “equal to the
minimum of the applicable guideline range” was an agreement between the parties
only, and “not binding upon the Court.” [Id. at ¶7(g).] So this provision of the plea
agreement was governed by Rule 11(c)(1)(B). In any event, given the Guidelines range
that I determined applied to Velasquez, the sentence I imposed actually represented a
significant departure below the bottom of the range, from 355 months to 305 months.
Velasquez demonstrates no right to a sentencing reduction based on Issue Three.
Issue Four: Ineffective Assistance of Counsel re Peugh Appeal
Velasquez contends in Issue Four that his attorney should have taken a direct
appeal to raise his claims of sentencing error in the multi-count adjustment (in effect,
Issue Three). Velasquez represents that he “advised” his counsel “of his duties to
appeal or place a motion to withdraw and be relieved by the Court of Appeals.” [DE
1821 at 6.] This issue is a non-starter because Velasquez waived his right to appeal in
his plea agreement: “I expressly waive my right to appeal or to contest my conviction
and all components of my sentence, or the manner in which my conviction or my
sentence was determined or imposed, to any Court on any ground...” [DE 796 at
¶7(h)(i).] I carefully reviewed the waiver with Velasquez at his change of plea
proceeding, and he affirmed that he understood its ramifications. [DE 1825 at 15-16.]
He also represented that the was giving up those rights knowingly and voluntarily, and
not as a result of coercion of any kind. [Id. at 16-17.]
The Seventh Circuit has held that “once a defendant has knowingly and
voluntarily waived his right to appeal both in a plea agreement and in court under Rule
11(b), the Sixth Amendment does not require an attorney to disregard the waiver by
complying with the defendant’s request to file an appeal.” Solano v. United States, 812
F.3d 573, 577 (7th Cir. 2016), citing Nunez v. United States, 546 F.3d 450, 456 (7th Cir. 2008).
So whether or not I believe Velasquez’s suggestion that he directed his attorney to file a
notice of appeal, “where there is an appeal waiver, the attorney can choose not to
appeal, even though there has been a request.” Nunez, 546 at 456.
The appeal waiver has this impact on Issue Four even though the government
has not invoked the waiver in defending against Velasquez’s §2255 motion generally.
The waiver was nonetheless validly in place immediately after sentencing when defense
counsel was asked to take an appeal. Defense counsel’s obligations were framed by the
state of affairs then existing, without counsel having to anticipate the possibility that the
government might later “waive the waiver” after a §2255 motion was filed. There are a
number of possible limitations on the ramifications of an appeal waiver, as enumerated
in Solano, 812 F,3d at 577-78. But in that case as here, none of those limitations applies.
Velasquez says he merely wanted Mr. Nagelberg (his counsel) to appeal the multi-count
grouping computation [DE 1821 at 5-6], and the enforceable appeal waiver clearly
encompassed this non-constitutional Guidelines issue. Issue Four’s ineffective
assistance of counsel claim is defeated by Velasquez’s valid waiver of the right to
appeal. In any event, for the reasons stated in Issue Number 3 above, counsel was not
ineffective for not taking an appeal of the multi-count grouping issue, because there
was no error in the computation.
Also within Issue Four, Velasquez invokes the Supreme Court’s decision in
Peugh v. United States, 133 S.Ct. 2071 (2013). As the Seventh Circuit has explained,
“Peugh tells us only that the advisory nature of the guidelines in the present era, the
Booker era, which allows the sentencing judge broad discretion, nevertheless does not
excuse constitutional violations arising from the judge’s miscalculating the applicable
guideline.” Hawkins II, 724 F.3d at 917. Velasquez’s quarrel with the offense level
computation and concerning which portions of the plea agreement were binding on me
do not raise constitutional questions, and the Peugh decision doesn’t support any relief
for Velasquez under §2255.
Issues Raised in Reply
In his reply brief, Velasquez raises several new claims unrelated to the grounds
for relief enumerated in his motion. He “attacks the findings of fact regarding his role
in [a] shooting,” and disputes whether the shooting “should have been considered at his
sentencing.” [DE 1849 at 3.] Citing Lafler v. Cooper, 132 S.Ct. 1376 (2012) and Missouri v.
Frye, 132 S.Ct. 1399 (2012), he makes allegations about his counsel’s explanation of the
plea agreement. [DE 1849 at 4.] Arguments raised for the first time in reply are
considered waived, and I will not address them further. United States v. Kennedy, 726
F.3d 968, 974 n.3 (7th Cir. 2013); United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006).
Certificate of Appealability
Finally, I must consider whether to grant Velasquez a certificate of appealability
on any of his claims. “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” RULES GOVERNING SECTION 2255
PROCEEDINGS 11(a). “A certificate of appealability may issue... only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2). To obtain a certificate of appealability, Velasquez must show that
reasonable jurists could debate whether his petition should have been resolved
differently. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). I am entirely unpersuaded
that reasonable jurists could reach opposite conclusions about Velasquez’s right to relief
on the grounds asserted in his motion under §2255, and I will deny a certificate of
Armando Velasquez received a below-Guidelines sentence that was less than the
binding sentencing cap in his plea agreement. For all the reasons above, Velasquez’s
motion under §2255 will be denied.
Armando Velasquez’s motion to vacate, set aside or correct his sentence under
§2255 [DE 1821] is DENIED.
A certificate of appealability is DENIED.
SO ORDERED this 11th day of October, 2016.
/s/ Philip P. Simon
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